Request By:
Mr. Robert A. Hutchinson
Commonwealth Attorney
37th Judicial District
West Liberty, Kentucky 41472
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are presently Commonwealth Attorney for the 37th Judicial District (Carter, Elliott and Morgan). A member of the Morgan County Board of Education has approached you and has asked you if you would accept a retainer as attorney for the Morgan County Board of Education.
You want a formal opinion as to whether such positions would be incompatible under our statutes or common law.
The commonwealth's attorney is a state officer. See KRS 69.010, 69.013, and 64.510. They prosecute for the Commonwealth and are paid out of the state treasury. See also KRS 15.755 (subsections 1, 3, 4, 5, 6, and 7 become effective January 1, 1978), relating to compensation of commonwealth's attorneys.
Beginning January 1, 1978, you will not be prohibited from private practice, since your judicial district does not contain a city of the first or second class or an urban county government. KRS 15.755(3).
You are thinking of acting as a counsel for the county school board. The members of a county school board are state officers.
Ward v. Siler, 272 Ky. 424, 114 S.W.2d 516 (1938) 517. However, a private practitioner performing as a general counsel for a school board is not a public officer of any kind, since that role does not meet the five requisites of a public office.
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817.
In your situation we are unaware of any constitutional or statutory incompatibility. Cf. KRS 61.080 and § 165, Kentucky Constitution. We do not construe the attorney-client role with the school board as making the attorney an officer or employee of the state or other municipality. See
Scobee v. Board of Education, 157 Ky. 510, 163 S.W. 472 (1914), holding that a school district is a taxing district or other municipality within the meaning of § 157, Constitution. Of course there is no constitutional or statutory incompatibility in a person's holding two state offices or employment at the same time [which situation here, however, does not exist], although in a given situation a common law incompatibility could be involved.
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928) 136. The point is that the proposed two positions do not fall within any of the prohibited combinations of offices and employments as mentioned in KRS 61.080 and § 165, Kentucky Constitution.
As concerns any practical or common law incompatibility, if you can perform both jobs with care and ability and with impartiality and honesty, no common law incompatibility would apparently be involved.